January 19, 2012

Reduce Roadblocks on the Information Freeway

Most of you probably noticed that you weren’t able to access many of your favorite websites yesterday, and you probably know why. But if you were busy hanging out on a beach somewhere or traveling without a smartphone, let me clue you in. Yesterday many major websites, including Wikipedia, Reddit and others, took themselves offline to protest the Stop Online Piracy Act and the Protect Intellectual Property Act. Both of these bills were initially drafted by entertainment lobbying groups, and both have the same goal: to crack down on Internet piracy and prevent users from posting media companies’ proprietary content without permission. While these bills do accomplish that goal, they go too far.For the sake of brevity, I’ll focus mostly on SOPA here, but I encourage you to examine the bills for yourself.Under SOPA, a single violation would permit the government to take down an entire site. For example, let’s say you run a blog called icanhazcheezburger.com (incidentally, this was another of the sites taken down to protest SOPA and PIPA). If a user uploads the movie Inception on your blog, Warner Brothers, the intellectual property holder, could serve your blog and any of its payment processors with a notice that all payments must cease within five days. This kills the revenue stream for a site, which effectively kills the site itself. Even more damaging, Warner Brothers could force your Internet service provider or search engines like Google to shut down access to your site.How could you, a humble blog operator with an affinity for funny pictures of cats, prevent such violations? The only way to do so would be to review every single entry before allowing it to be posted. This would go against the entire business model of sites that thrive on user-generated content. For example, Reddit, a popular social news website on which users post news stories and then vote on each other’s posting to determine popularity and placement on the website, has a staff of only 11 people. In contrast, the site hosts more than 30 million unique users a month, many of whom post one or more stories. To review each individual post would cripple Reddit and make it unprofitable. At a time when jobs are scarce and the Internet is one of the few economic growth areas in the U.S., measures like SOPA and PIPA would be detrimental to the U.S. economy.A clear takeaway from this debate, which seems to be relatively one-sided now that so many Internet companies and advocacy groups have gotten involved, is that Congress really doesn’t know what it’s doing when it comes to regulating the Internet. I’d wager that many of the bills’ initial supporters merely read the titles of these bills and thought, “Well that sounds pretty uncontroversial and fair to me.” Since public backlash kicked in, though, only legislators who rely on strong support from the media industry, like Patrick Leahy (D-Vt.), are still defending SOPA and PIPA. Obama, for his part, has indicated that he would not support either bill unless it was substantially narrowed.But the question remains, how can this problem be fixed? Surely the Internet requires some degree of regulation, but much care should be taken to regulate Internet speech and content as little as necessary, so as to preserve users’ First Amendment rights and allow sites like icanhazcheezburger.com to thrive without placing crippling restrictions upon them.U.S. Rep. Darrell Issa (D-Calif.) has an answer. Issa recently drafted a bill called the Online Protections and Enforcement of Digital Trade Act (OPEN) that would attempt to curb online piracy by focusing exclusively on foreign sites and using the International Trade Commission as the enforcer. Although this seems like a reasonable alternative, the way in which Issa has presented the language of his bill is far more compelling than its content. Issa launched keepthewebopen.com to present voters and interested parties with the language of the OPEN Act, SOPA and PIPA, while also comparing the bills’ language side-by-side. In addition, Issa has added a section on the front page of the site that allows for user comments and suggestions. “Comments” are statements or questions about the bill and “suggestions” are user-generated modifications of the bill’s language. This is effectively a less formal version of the notice and comment process used by administrative agencies when creating new regulations. Using this mechanism, Issa hopes to gain greater insight into what voters care about, but he also hopes to make the process of legislative drafting more transparent. By showing work and encouraging feedback, Issa’s bill has a much stronger chance of representing what his constituents want than lobbying firm-generated bills like SOPA and PIPA.So, I encourage you to sign any and all circulating petitions against SOPA and PIPA. Call or write your senators and representatives and take any other standard political approach to stopping these bills. But I also encourage you to visit keepthewebopen.com and give your feedback. Congressman Issa is the only legislator inviting people to help him draft effective legislation to regulate the Internet. And if I’m right that Congress has no idea how to regulate the Internet, then he’s going to need a lot of help.

Chuck Guzak is a third-year law student at Cornell Law School. He may be reached at cmg258@cornell.edu. Barely Legal appears alternate Fridays this semester.

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